Federal Legislation Would Change Clean Air Act to Bar States from Setting Greenhouse Gas Standards for Vehicles

5 June 2007

Legislation under discussion in the US House Committee on Energy and Commerce would, if eventually enacted, amend the language of the Federal Clean Air Act to block states from establishing standards to limit the emission of greenhouse gases from automobiles.

The discussion draft of legislation submitted by Subcommittee on Energy and Air Quality Chair Rick Boucher (D-VA) would prohibit the head of the Environmental Protection Agency from issuing the waiver required for a state to impose auto pollution standards if the new requirements are “designed to reduce greenhouse gas emissions.”

The issuance of a federal waiver is a well-established process with decades of legal precedent in California’s setting of its own, more stringent emissions regulations. The issuance of the waiver is also the next step in California’s quest—now 18-months old—to proceed with implementing its greenhouse gas limits on new light-duty vehicles beginning in 2009. Eleven other states have adopted the California regulations. (Earlier post.)

Specifically, the new legislation under discussion would amend Section 209(b)(1) of the Clean Air Act (42 U.S.C. 7543) to read (new language is in boldface):

...No such waiver shall be granted if the Administrator finds that-

the determination of the State is arbitrary and capricious,

such State does not need such State standards to meet compelling and extraordinary conditions,

such State standards and accompanying enforcement procedures are not consistent with section 202(a) of this part, or

such State standards are designed to reduce greenhouse gas emissions.

A hearing by the Subcommittee on Energy and Air Quality on the discussion draft is scheduled for Thursday, and will be webcast. The legislation will also be considered for inclusion in energy legislation scheduled for markup during June by both the Subcommittee and the full Committee, according to Boucher.

The draft is meant to stimulate discussion on several critical issues affecting US energy security: the production of alternative fuels and the infrastructure required to deliver them; the impact of motor vehicle use on energy consumption and supply; and the need to recognize the interdependent relationship between fuels and vehicles by treating them as a system.

—Representative Boucher

Among the other proposals included in the Discussion Draft are:

Implementing an Alternative Fuels Standard (AFS) that would begin in 2013 and mandate the use of 35 billion gallons of alternative fuel by 2025. In addition to corn-based and cellulosic ethanol, the bill would encourage and support the development of coal-to-liquids synthetic fuels as well as natural gas and electricity.

The bill establishes compliance value multipliers for each alternative fuel to determine the extent to which each fuel satisfies the volume obligation. Corn ethanol, for example, has a compliance value of 1.0, while gas-to-liquids and coal-to-liquids fuels have values of 1.5. In the early years (2013-2015), cellulosic ethanol has a compliance value of 2.5. This drops to 1.0 in the longer term. Electricity and gaseous hydrogen have values of 2.5 from 2013 though 2020, then dropping to 1.0. Butanol makes it on the list as well, with a value of 1.3 for the entire period.

Establishing a Low Carbon Fuel Standard (LCFS). The LCFS is based on the volumes of the AFS. Twelve billions gallons of the alternative fuel required by that standard are to have a carbon intensity equal to 80% of the carbon intensity of gasoline. Of the remainder of the alternative fuel required by that standard for a given year, 50% will have a carbon intensity equal to 50% of the carbon intensity of gasoline; and 50% will have a carbon intensity equal to 25% of the carbon intensity of gasoline.

Developing programs to assist retailers in the installation or conversion of fuels infrastructure to alternative fuels use.

Mandating an increase in fuel economy to 36 mpg US by model year 2021 for passenger cars and 30 mpg US after model year 2024 for light-duty trucks. In addition to expressing standards in terms of miles per gallon, the bill would also require the expressions of standards in average grams per mile of carbon dioxide emissions. Automakers would have to increase the production of dual-fueled vehicles (e.g., flex-fuel vehicles) from 45% of new vehicles in 2012 to 85% in 2020.

They need to let the states do what they want on this one. It is a way of limiting huge, heavy, polluting and gas guzzling SUVs on their roads and they have every right to do this. It is their state and those are their roads.

This appears to be an instance of the usual turf war between federal and state legislators. It is true that greenhouse gases are a global rather than a local/regional environmental problem, so the responsibility for addressing it should lie at the federal level. Only the state department can negotiate directly with foreign governments.

The problem is that the entire federal body politic has been abdicating this responsibility for many years now. Congressional representatives are simply too beholden to campaign contributions from industry, e.g. the energy and auto sectors.

Besides, the Supreme Court has already ruled that the Clean Air Act basically entitles individual states to restrict the emissions of harmful compounds not covered by EPA regulations. That is why there is now a waiver process. Rep. Boucher's amendment is attempt to close the barn door after the horse has bolted and, may be ruled unconstitutional even if it passes. Of course, there would be a lengthy delay...

Lemmee see if I've got this right...if any state wants to raise standards above the minimum to show that even more can be done...that's um, wait, I know this one, um, "bad" for the country because, um, ah...oh dang, I thought I knew this one.

Let me see if I have this right, the states are willing to do something about a problem that the federal government has sat on it's thumbs about, and now these "representatives" are going to try and get in the way of the people that are doing something? With authority comes responsibility. If you can't live up to your responsibilities (i.e. earn your pay) then you've abdicated your authority.

I don't think its a matter of being upstaged. I think its a matter of trying to water down something that could have worked. As Rafael also points out "Congressional representatives are simply too beholden to campaign contributions from industry, e.g. the energy and auto sectors." and I agree completely.

Ah, come on guys; you know the auto & energy sectors don't ever get together on these things & they would never try to persuade our sweet, innocent Congressional Representatives with financial incentives, promising careers, board positions, great jobs or anything like that... why that is illegal or something, isn't it?

And since when did the Feds want to control anything at state level anyway or when did they ever try to side up with the auto & energy sectors? This is all just foolishness. Don't worry about 209 guys, it will only empower the states to pass more of their own state-laws & be able to sue the feds at leisure & always win!

Ooops!... I see where Paul says I need to back to the sand-box... OK see ya'll later!

There is a positive aspect to all this: it opens debate on the issue. However I think the AAM is behind this bill as a way to kill the California GHG regulations without court action becoming necessary.

Follows the reply I received when I wrote Toyota's CEO and complained about them working against reducing GHGs:
"Thank you for contacting Toyota Motor Sales, U.S.A, Inc.
Toyota, as part of the Alliance of Automotive Manufacturers (AAM), is supporting a lawsuit challenging California's right to establish a new regulation that seeks to reduce carbon dioxide (CO2) and other greenhouse gas emissions through changes in motor-vehicle fuel economy.

We do not take this action lightly, knowing that environmentalists, who have praised Toyota's advanced technology vehicles for their low emissions, may target us for public criticism. However, the regulation is so extreme, ineffective and costly that we have no recourse but to fight it. The increased fuel economy requirements are drastic even for Toyota, which has one of the best environmental records in the industry.

For consumers, this could lead to higher prices and fewer vehicle choices. The cost to consumers, according to AAM, would average an added $3,000 per vehicle.

Global warming is a genuine concern for our society, and we vow to be part of the solution. The California rule has an admirable goal, but takes the wrong approach. Any solution must take at least a national approach or it will threaten economic growth while having little effect on the problem.

Rest assured, we will continue to work with others, including California and federal regulators, government representatives, academic leaders, the industry and environmentalists, to seek innovative solutions to the problem of global warming. And we will continue developing pioneer technology that will lead the way to future environmental advancements.

You may wish to click on the hyperlink in this sentence for information regarding Toyota and the Environment.

We appreciate your interest in environmental technologies used by Toyota.

We are committed to manufacturing vehicles with the most sophisticated and advanced technology that will help ensure high quality vehicles that has made Toyota a leader in the automotive industry. In the same respect, we are also developing technologies that will allow for more efficient and environmentally conscious powertrains...."

I'd be interested to hear someone who knows the ins-and-outs of Congress speculate how this plays out from here. Boucher has revealed his own views, but I gather this is his first time being head of a major subcommittee, and given the composition I don't see many of the Democrats of the subcommittee signing on to this version. Does he plan to report this out to the full committee using mostly Republican votes? And if so, what are its chances in the full committee and the full House, given the tight control over rules exercised by the leadership, which is certainly not going to accept a step backwards on climate. (The CTL and California sections alone would probably kill this bill, despite the widespread support for ethanol.) And any final bill will have to go into Conference Committee with the Senate. That's a lot of hoops.

Does anyone else see this as an initial bargaining position from one Democratic member who is just opposed to serious action on climate?

I should have explained in my post above. Those are the subcommittee members...write them emails expressing your belief that the US environment has been greatly helped by having minimum Federal clean air standards, and allowing all states that want to follow California's lead to adopt higher standards. This two-standards system is easy for automakers because the higher California standard will always represent a large enough car market to make the higher mandated equipment profitable. Of course, if the subcommittee would support raising the CAFE standards to 40 MPG by 2012, that would have a similarly beneficial effect.